When a US citizen marries a foreign national outside of the US, the K-3 visa allows the foreign national spouse to come to the United States to live together with the US citizen spouse while the green card application is pending. The foreign national spouse can bring his or her children to the US with the K-4 visa, and the children can get a green card as step-children of the US citizen.
Here is the problem. Children of a foreign national spouse are eligible to apply for a K-4 visa until they reach age 21. If a child was under age 18 when the marriage took place, that child can apply for a green card on the basis that he or she is a stepchild of a US citizen. However, if the child was 18 or older when the marriage took place, the child is not legally a stepchild of a US citizen, and therefore not eligible for a green card. These two rules together create the trap.
The result of this trap is illustrated in the recent case of Akram v. Holder decided by the United States Court of Appeals for the Seventh Circuit July 9, 2013. Mahvash Akram was 18 years old when her mother married a US citizen outside the United States, Farhan Siddique. Mahvash and her mother both got K visas so they could go to the United States and live with Farhan while their green card applications were pending. Although Mahvash was eligible for the K-4 visa, her green card application was denied because she was over 18 at the time her mother married Farhan. The US government filed proceedings against her to remove her from the United States. After she lost her case before the immigration judge (IJ) and the Board of Immigration Appeals (BIA), she appealed her case before the Seventh Circuit US Court of Appeals.
The court looked for guidance by comparing the K-3/K-4 spouse visa to the K-1/K-2 fiancé visa. The fiancé visa does not have this problem. A child who comes to the US with a K-2 visa as the child of a K-1 fiancé, is eligible to receive a green card as a derivative of the K-1 parent’s marriage to the US citizen. On the other hand, a child who comes to the US with a K-4 visa as the child of a K-3 spouse, is eligible to receive the green card as a result of being a stepchild of the US citizen.
The K-1/K-2 fiancé visa was created by Congress in the Immigration Marriage Fraud Amendments in 1986, in order to allow foreign national fiancé of a US citizen to come to the United States to get married and apply for a green card. Originally, the K-1/K-2 fiancé visa had the same problem that the child over 18 could not adjust status to permanent residence because the child was not the stepchild of a US citizen. As a result of this predicament, 8 C.F.R. § 214.2(k)(6)(ii) was created to provide an administrative means for K-2 children to adjust status without demonstrating a relationship to a US citizen.
Foreign national fiancés had an advantage over foreign national spouses at the time because no such comparable visa was available for a foreign national spouse living abroad. In the year 2000, the K-3/K-4 spouse visa was created by Congress in the Legal Immigration Family Equity Act.
After examining the language of the fiancé visa law and the spouse visa law, the court said “It is unclear why the same administrative fix was not made for K-4s.” The court reasoned that this may have happened because the fiancé visa law was passed in 1986, and the spouse visa law was not passed until 2000. The court said that it saw no statutory reason for treating K-2 and K-4 visas differently because they arise from exact same statutory language.
The court concluded that there was no logical reason that Congress would intend to treat the two visas differently, so the court decided that Congress intended them to be treated the same. The court ruled that K-4 children are to be treated the same as K-2 children and may adjust status to permanent residence based upon their foreign national parent, not a US citizen step parent.